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Public Domain vs. Copyright, and The Seven Stooges Revisited

February 21, 2011

About a year ago, I argued that, in Comedy III Productions v. Saderup, sketches of Three Stooges characters imprinted on T-Shirts should be permissible because four Stooges episodes have been released to the public domain. Derivative works based on the public domain works are permissible – that is the point of the public domain. Unfortunately, because the defendant’s lawyers did not raise the issue the California courts did not consider the issue.

Now, this exact issue is being considered by the Eighth Circuit in Warner Bros. Entertainment, et al. v. X One X Productions, et al. In this case, the copyright holders of the movie Wizard of Oz (on copyright) are suing a company producing T-Shirts with images taken from off-copyright promotional materials. The copyright holders argue that despite the public domain status of the promotional materials, the T-shirts still infringe the copyrighted movie. Surprisingly and sadly, the district court agreed.

This case presents a very similar fact pattern to that in Comedy III Productions v. Saderup. In my previous post on that case, I point out that allowing actors (or anyone else) to control off-copyright public domain works would run so contrary to Constitutional policy that it would be untenable. Copyrights are intended to protect for a limited time, once a work is in the public domain it is fair game. In Warner Bros. the copyright holders are attempting to circumvent this public domain concept that is at the heart of copyright policy.

To rule that a copyright holder of one work can control any use of related but off-copyright work is ludicrous. For example, that would mean that someone who made a parodied Mona Lisa could prevent another from creating a parody of the Mona Lisa -allowing them to effectively control copyright on the Mona Lisa itself. Further, as noted on Patently-O in the comments, if a copyright holder continued to release works involving the same characters, they could maintain a perpetual copyright.

If the Eighth Circuit affirms the district court’s decision, the question must be asked: What is the point of a public domain? A line must be drawn somewhere. We can only hope that the Eighth Circuit will exercise restraint and prevent copyright law from continuing to balloon and further encompass the public domain.

Thanks to Patently-O for providing coverage on this interesting case.

District Court Opinion

Appellant Brief

Appellee Brief

Appellant Reply Brief

2 Comments leave one →
  1. Dave permalink
    February 21, 2011 6:09 pm

    In Saderup, the cause of action was California’s publicity rights – not copyright. The defendant underwent a commercial venture, made $75,000 off of the Three Stooges , and got sued. He likely would have been fine if he made himself a t-shirt, or even if he made a bunch of shirts for his friends and only charged enough money to recoup expenses. Public domain analysis does not apply…

    The Defendant in Warner Bros. copied a bunch of stuff from the Plaintiff. Then, when the Plaintiff sued, the Defendant said that, because certain publicity materials lapsed into the public domain, two movies and all the copyrighted characters comprised therein ALSO lapsed into the public domain. Even if the Defendant’s argument held water, it does nothing to defeat the publicity rights claim and would be only a small step toward defeating the trademark claim. The Defendant should have known – both movies came out in 1939 and not prior to 1923.

    • February 21, 2011 7:43 pm

      Public domain analysis should have applied in Saderup because of federal copyright preemption. I wrote about it here.

      It is not, nor should it be illegal to copy stuff in the public domain. People shouldn’t have to wait until everything related to the Wizard of Oz goes off copyright to be allowed to use the works. Instead, once one work goes off, the content contained therein should be fair game, regardless of if similar images etc. are contained in copyrighted works.

      Like in Saderup, there should be no publicity claim because of preemption. As for the TM claim, its questionable, but might have some merit, depending on the specific facts.

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